'Dirty bomb' suspect Padilla odd man out in ruling

July 6, 2004
Newsday, July 5, 2004 by John Riley
'Enemy combatant' case still unresolved as Supreme Court cites procedural grounds for passing on judgment

In mathematical calculations, four plus one equals five. But in the U.S. Supreme Court, as alleged al-Qaida "dirty bomber" Jose Padilla learned last week, the same numbers sometimes add up to zero.

Until last Monday, Padilla's controversial two-year-long incommunicado military detention as an "enemy combatant" was the best-known of the three landmark war-on-terror cases the court had agreed to review. Among legal insiders, it also was viewed as the most compelling challenge to the Bush administration's aggressive tactics - a U.S. citizen arrested in May 2002 on U.S. soil at Chicago's O'Hare Airport and held without charges solely on the president's say-so.

Instead, Padilla ended up the odd man out. The court extended judicial protection to foreign combatants held in Cuba, and to an American captured in Afghanistan. But the justices ducked Padilla's case on procedural grounds - thwarting a majority that, legal experts say, appeared poised to hand the Bush administration an even more stinging rebuke by holding that Padilla was not only entitled to access to the courts, but that his detention was outside the legal system from the start.

It was, in a sense, the most important decision the court didn't make. "The court was troubled by the Padilla case," said Douglas Kmiec, a constitutional scholar at Pepperdine University. "They didn't have a ready order for what to do with him. And one of the things courts do in that situation is rely on procedural formalities to buy time for them to think it through."

But Padilla's lawyers didn't miss the signals. They say the court's ruling dramatically strengthened their hand to push the Justice Department to release him or charge him with something. They intend to demand just that when they refile their case in South Carolina, where Padilla is held in a naval brig, rather than New York, which the Supreme Court said was the wrong jurisdiction.

Attorney's confident

"We're confident that a majority of the court would find that American citizens seized in civilian settings in the U.S. cannot be treated as enemy combatants," said Jonathan Freiman, one of Padilla's attorneys. "They must be charged with a crime or released. We hope that the Justice Department will read the handwriting on the wall."

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